No One’s Job: West Virginia’s Forbidden Waters

The Elk River rises in the broad valleys of Pocahontas County, West Virginia, over the mountains from Virginia’s Piedmont horse country, then spills into the narrow hollows of the counties of Webster, Braxton, and Clay on its way to join the Kanawha River, in Charleston. It snakes north of coalfields, through small towns built up during hardwood-timbering booms. Flanked by steep slopes, it runs in shadow for much of the day. Rhododendrons, which need shade, choke the narrow gorges of its tributaries. The Elk shares its narrow band of flatland with two-lane roads, train tracks, and tiny vacation shacks perched on the slope between the berm and the riverbank.

Last Thursday, an estimated seventy-five hundred gallons of crude MCMH, a chemical used to remove impurities from coal, ran into the Elk from a one-inch hole in a tank belonging to a company called Freedom Industries. The leak took place a mile and a half upstream from a major intake for West Virginia American Water, a private company that provides municipal water in parts of nine counties, including Charleston, the state capital. Since then, about three hundred thousand people have been under orders not to drink the water, cook with it, wash in it, or even use it do laundry. Some households have backup wells or springs, but most are relying on emergency water distribution from the National Guard and private groups. In the past day, officials have begun approving water use for some areas.

The spill was a reminder of the familiar dangers of the industrial economy that runs beneath the sleek surfaces of tech and finance industries in West Virginia. In 1985, a Union Carbide plant in Charleston’s so-called Chemical Valley leaked methylene chloride, sending more than a hundred people to the hospital. In 2010, twenty-nine miners died in an explosion at the Upper Big Branch mine, in Raleigh County. Mountaintop-removal mining has buried more than a thousand miles of stream headwaters and shattered hundreds of hills and mountains.

The Freedom Industries spill is another burst of industrial harm, another reminder that the consequences of risks often fall on the poor. But it is possible that, in the end, no one will be poisoned, no fish will be killed, and the injuries will be restricted to the wretched hassle, anxiety, and plain indignity of living without water for a week. This is possible because no one knows much of anything about how MCMH affects human health. It is no one’s job to know.

The Toxic Substances Control Act is the main federal statute governing poisons. MCMH is exempt from regulation because, like more than sixty-two thousand other chemicals, it was already in use when Congress passed the law, in 1976. The safety or hazard of most of the industrial economy is opaque. We ignore this reality until a large dose of a chemical ends up in a municipal water system.

Even now, the cap on MCMH levels that determines when central West Virginia’s drinking water is “safe”—one part per million—is a wild guess. Pretty much all that anyone knows about the health effects of this chemical is what size dose is fatal for rats, and that number comes from a single, non-peer-reviewed study. A crude extrapolation of this number puts the fatal dose for a large adult at a little more than two ounces.

Allowing for the limits on what state officials know about the relevant differences between people and rats, as well as the extra vulnerability of the sick and aged, state officials are just guessing what might be lethal for humans, let alone unsafe; the number they came up with tells us nothing about disease risks, chronic ailments, and bioaccumulation.

It isn’t as if these scantily regulated chemicals stay out of waterways most of the time. They come in at a thousand points. M.C.M.H. is part of a chemical bath that separates impurities from coal before it’s burned in power plants. The resulting slurry of waste ends up in impoundment ponds, often near valley heads in former mountaintop-removal sites. Sometimes the ponds flood, sometimes the dams break, and, sooner or later, everything leaks.

It was, apparently, no one’s job to regularly monitor Freedom Industries’ tanks along the Elk, even though state officials knew that hazardous chemicals were sitting near the West Virginia American Water intake. The West Virginia Department of Health and Human Resources produced its most recent “Source Water” report on the site in 2002; it includes no reference to either M.C.M.H. or Freedom Industries. (Pennzoil used to occupy the site, according to reporting by Ken Ward in the West Virginia Gazette.) The state’s Department of Environmental Protection inspected the tanks in 1991, and found nothing amiss when, in 2010, it responded to a report of a licorice scent, or in 2012, when it updated its air-pollution oversight. The only permit issued by a state agency for the site governs stormwater runoff. Local officials have sometimes asked for new authority to plan for chemical spills, but those requests go nowhere in a state government that habitually defers to both coal and chemical companies.

On the federal level, before the spill, the Occupational Safety and Health Administration hadn’t inspected Freedom Industries, and the E.P.A. seems to have left matters entirely to state officials. Attacking federal environmental regulation is regarded as a safe bet in West Virginia state politics, where the coal industry’s war on the Obama Administration has become a local insurrection. Democratic Governor Earl Ray Tomblin promised, in his last State of the State address, that he would “never back down from the E.P.A.” The state’s junior senator, Joe Manchin, a Democrat, was elected after he ran an ad in which he pumped a bullet into a copy of the (failed) 2010 cap-and-trade bill, to show his contempt for the regulation of coal. His comments on the spill have avoided talk of regulation or responsibility.

The entire crisis is a tableau of abdication: years of privatization and non-regulation followed by panic. It is an emergency, not least because inaction has insured that no one knows enough to say that it is not an emergency. The response thus far—issuing no-use orders for the water supply and mobilizing the national guard to distribute household water—is one of minimal government. A government that could have avoided the emergency would have to be much more confident and better resourced—just the kind of government the coal and chemical industries, and much of the state and national political establishment, have been dedicated to blocking and tearing down.

Asked over the weekend whether there should have been more oversight and emergency planning, Governor Tomblin replied, “I’m not someone who runs West Virginia American Water.” One might ask who is. It is not just a matter of the name of the C.E.O. of a private company with a monopoly on a major public good; it is a question of who is responsible for providing one of the most basic human needs, clean and safe water, and how the public can hold them to that responsibility. The crisis is a study in what it means to have a political system that gives no answer to that question. Meanwhile, the Elk River joins the Kanawha and flows on to Ohio, carrying a new chemical load that no one wants to own.

Above: Freedom Industries, on the banks of the Elk River, on January 10, 2014. Photograph by Tom Hindman/Getty.

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